VDARE Foundation, Inc. v. James

• Court: Court of Appeals for the Second Circuit
• Decided: December 17, 2025
• Docket: 23-1084
• Status: Published

Opinion

23-1084(L) VDARE Foundation, Inc. v. James

United States Court of Appeals For the Second Circuit

August Term 2024

Argued: September 30, 2024 Decided: December 17, 2025

Nos. 23-1084(L), 23-7409(Con)

VDARE FOUNDATION, INC.,

Plaintiff-Appellant,

LETITIA JAMES, in her official capacity as Attorney General of the State of New York,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of New York No. 22-cv-1337, Frederick J. Scullin, Judge.

Before: SULLIVAN, NATHAN, Circuit Judges, and REYES, JR., District Judge. ∗

Plaintiff VDARE Foundation, Inc. (“VDARE”), a nonprofit charitable corporation organized under New York law, appeals from (1) an order of the United States District Court for the Northern District of New York (Scullin, J.) denying VDARE preliminary injunctive relief, and (2) a judgment dismissing VDARE’s claims challenging a subpoena issued by New York Attorney General

∗ Judge Ramón E. Reyes, Jr., of the United States District Court for the Eastern District of New York, sitting by designation. Letitia James. In both instances, the district court concluded that VDARE’s suit, which alleged that the Attorney General’s subpoena to VDARE was motivated by viewpoint discrimination and violated its First Amendment and related state constitutional rights, was precluded by a New York state court’s decision ordering VDARE to comply with the subpoena. On appeal, VDARE asserts that res judicata, or claim preclusion, does not bar its claims raised in federal court against the Attorney General, and that preliminary injunctive relief enjoining enforcement of the subpoena is warranted. We conclude that the district court correctly determined that VDARE’s claims are precluded. Accordingly, we AFFIRM the judgment of the district court and DISMISS AS MOOT the appeal of the district court’s order denying VDARE’s motion for a preliminary injunction.

AFFIRMED.

JAY M. WOLMAN, Randazza Legal Group, PLLC, Hartford, CT (Marc. J. Randazza, Randazza Legal Group, PLLC, Gloucester, MA, on the brief).

JONATHAN D. HITSOUS, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Jeffrey W. Lang, Deputy Solicitor General, on the brief), for Letitia James, Attorney General for the State of New York, Albany, NY.

RICHARD J. SULLIVAN, Circuit Judge:

Plaintiff VDARE Foundation, Inc. (“VDARE”), a nonprofit charitable

corporation organized under New York law, appeals from (1) an order of the

United States District Court for the Northern District of New York (Frederick J.

Scullin, Judge) denying VDARE preliminary injunctive relief, and (2) a judgment

dismissing VDARE’s claims challenging a subpoena issued by New York Attorney

2 General Letitia James. In both instances, the district court concluded that

VDARE’s suit, which alleged that the Attorney General’s subpoena to VDARE was

motivated by viewpoint discrimination and violated its First Amendment and

related state constitutional rights, was precluded by a New York state–court’s

decision ordering VDARE to comply with the subpoena. On appeal, VDARE

asserts that res judicata, or claim preclusion, does not bar its claims raised in federal

court against the Attorney General, and that preliminary injunctive relief enjoining

enforcement of the subpoena is warranted. We conclude that the district court

correctly determined that VDARE’s claims are precluded. Accordingly, we

AFFIRM the judgment of the district court and DISMISS AS MOOT the appeal

of the district court’s order denying VDARE’s motion for a preliminary injunction.

I. BACKGROUND

VDARE, a section 501(c)(3) non-profit foundation and charity organized

under the laws of New York, was created “to support the efforts of VDARE.com,

a non-profit web magazine” run by its founder, Peter Brimelow, and his wife,

Lydia. App’x at 10. According to its complaint, “VDARE has published pieces

that criticize” the United States government’s policy on immigration “for various

reasons and from a variety of angles and perspectives,” and “VDARE’s editorial

3 position . . . favor[s] . . . limiting immigration.” Id. at 12. These positions have

led “detractors” to describe VDARE as a “white nationalist” and “racist”

organization – labels that VDARE itself rejects. Id. (internal quotations marks

omitted). As a result of these characterizations, “people have lost employment,

and contractors essential to VDARE’s existence have opted to stop providing

services” when their “associations with VDARE have been disclosed or become

public.” Id.

In June 2022, the Office of the Attorney General of New York (“OAG”)

issued a subpoena to VDARE, seeking various documents concerning VDARE’s

governance, financial operations, and regulatory disclosures, including

documents that would identify “VDARE’s current and former independent

contractors” and disclose information relating to transactions with its vendors.

Id. at 266; see id. at 262–70. The subpoena required VDARE to respond by July

2022.

While VDARE does not dispute as a general matter that the OAG has

authority to oversee and investigate charitable organizations like itself, see N.Y.

Not-for-Profit Corp. Law § 112(b)(6); N.Y. Est. Powers & Trusts Law § 8-1.4(i); N.Y.

Exec. Law §§ 63(12), 175, the parties sharply contest the motivations behind the

4 subpoena. VDARE alleges that the subpoena was entirely pretextual, and that

the OAG targeted it as a part of the Attorney General’s efforts to “limit” VDARE’s

viewpoints on immigration and “speech with which she disagrees.” App’x at 22. 1

OAG, by contrast, asserts that it began investigating VDARE after public reports

indicated that the organization had purchased a medieval-style castle in West

Virginia that the Brimelows were using as a private residence, raising conflict-of-

interest concerns. According to the OAG, a review of VDARE’s public filings also

revealed that it had failed to file mandatory reports and made material omissions

in those that were filed.

VDARE initially demanded that the OAG withdraw the subpoena,

contending that the document requests required disclosures that would violate its

First Amendment rights to free speech and association. In September 2022,

however, VDARE began producing documents in response to the subpoena, while

continuing to confer with the OAG about the subpoena’s scope and production

deadlines. On December 2, 2022, the OAG notified VDARE of what it perceived

1 As additional support, VDARE alleges that, in the weeks before the OAG issued the subpoena to VDARE, the Attorney General’s Special Counsel for Hate Crimes subpoenaed Meta, the parent company of Facebook, and Facebook Payments, seeking information about VDARE. According to VDARE, these actions were consistent with the Attorney General’s desire, professed in 2020, to use a “newly-created ‘Hates Crimes Unit’ [to] ‘focus on social media companies’” and to “increase censorship against ‘hate speech and hate organizations.’” App’x at 13.

5 to be “significant deficiencies in [its] production response,” including “ongoing”

delays, “repeated failure to abide by deadlines that” VDARE itself had proposed,

and the “failure to produce certain categories of documents” altogether. Id. at

380. In the same letter, the OAG indicated that it would “seek judicial

intervention to obtain compliance if the documents and information listed here are

not produced by December 12, 2022.” Id. at 382.

Instead of producing the additional documents or otherwise responding to

the OAG, VDARE filed suit in federal court on December 12, 2022 against the

Attorney General in her official capacity. In its complaint, VDARE alleged that

the subpoena violated its rights of free speech and association under the First

Amendment and New York state constitution. VDARE also alleged that the

subpoena was issued in retaliation for VDARE’s engaging in constitutionally

protected speech. VDARE sought compensatory and punitive damages, as well

as declaratory and injunctive relief “barring the [OAG] from enforcing . . . the

subpoena.” Id. at 24–25.

Less than a week later, on December 16, 2022, the OAG commenced a special

proceeding in the New York State Supreme Court pursuant to state law to compel

VDARE to comply with the subpoena. See App’x at 109–16. VDARE, in turn,

6 filed a motion to dismiss the petition, or alternatively, to stay the state-court

proceedings pending resolution of its federal suit. In its motion and

accompanying papers, VDARE asserted that the subpoena’s stated basis was mere

pretext to retaliate against VDARE for its constitutionally protected activity.

VDARE also acknowledged that its “[f]ederal [c]omplaint is based on many of the

same underlying issues raised by the OAG’s subsequent special proceeding in”

state court. Id. at 232.

The New York Supreme Court subsequently denied VDARE’s request to

dismiss or stay the state proceedings and granted the OAG’s petition to compel,

rejecting VDARE’s arguments that the subpoena impaired its First Amendment

rights. In ordering VDARE’s compliance, the state court permitted VDARE to

redact its donors’ and volunteers’ identities and further noted the availability of a

confidentiality agreement to address VDARE’s remaining concerns. VDARE

appealed that order to the New York Appellate Division, First Department (the

“First Department”) and moved for a stay of the state trial court’s order pending

appeal. After granting a temporary stay pending consideration of VDARE’s

motion, the First Department ultimately denied the motion and vacated the

temporary stay in March 2023. Meanwhile, the OAG moved in the district court

7 to dismiss VDARE’s federal complaint, arguing among other things that, given the

state court’s order compelling compliance with the subpoena, res judicata barred

VDARE from asserting its federal claims. While that motion was pending, and

given the First Department’s vacatur of its temporary stay, VDARE moved in the

district court to enjoin the OAG’s enforcement of the subpoena. The district court

denied VDARE’s request for a preliminary injunction on res judicata grounds and

later dismissed the complaint altogether for the same reason. VDARE timely

appealed each of the district court’s decisions.

While the present appeal was pending, on February 15, 2024, the First

Department affirmed the state court’s order granting the OAG’s petition to compel

compliance with its subpoena. See People v. VDARE Found., Inc., 205 N.Y.S.3d 348,

349–50 (1st Dep’t 2024). The First Department rejected VDARE’s arguments that

the subpoena infringed on its or its vendors’ and contractors’ First Amendment

rights, holding among other things that VDARE had failed to show that the

disclosure of vendors’ identities subject to a confidentiality agreement would

impact its members’ associational rights. See id. The First Department likewise

rejected VDARE’s contention that the OAG “was targeting it for its protected

speech.” Id. at 350. Finally, on June 13, 2024, the New York Court of Appeals

8 sua sponte dismissed VDARE’s appeal “upon the ground that no substantial

constitutional question is directly involved.” People v. VDARE Found., Inc., 41

N.Y.3d 1009 (2024). 2

II. DISCUSSION

On appeal, VDARE principally challenges the district court’s claim-

preclusion analysis, asserting that the state court’s order did not satisfy the

elements of New York’s res judicata test and that, in any event, general principles

of equity precluded application of res judicata in this case. We disagree. Because

we conclude that the district court correctly dismissed the action on res judicata

grounds, we affirm the district court’s judgment and dismiss as moot VDARE’s

challenge to the district court’s denial of its request for a preliminary injunction.

A. Standard of Review

We review de novo the district court’s application of res judicata and dismissal

under Rule 12(b)(6). Whitfield v. City of New York, 96 F.4th 504, 518 (2d Cir. 2024).

In reviewing a res judicata defense on a Rule 12(b)(6) motion, a court’s review “is

2 The parties continue to litigate VDARE’s compliance with the subpoena in state court. Most recently, on November 17, 2025, the state court re-affirmed that VDARE’s failure to produce 556 documents in an accessible format has resulted in a finding of contempt against it and “an ongoing daily fine” at a rate of $1,000 per day. People v. VDARE Found., Inc., No. 453196/2022 (N.Y. Sup. Ct. Nov. 17, 2025); see also Ref. Rep. & Recommendation, Doc. No. 361 at 3, People v. VDARE Found., Inc., No. 453196/2022 (N.Y. Sup. Ct. Aug. 1, 2025).

9 limited to the plaintiff’s complaint, documents attached or incorporated therein,

and materials appropriate for judicial notice.” TechnoMarine S.A. v. Giftports, Inc.,

758 F.3d 493, 498 (2d Cir. 2014). A court may appropriately take judicial notice of

filings and judgments made in state courts. See, e.g., Simmons v. Trans Express Inc.,

16 F.4th 357, 360 (2d Cir. 2021).

B. Res Judicata Applies Here

Federal courts are required “to give preclusive effect to state-court

judgments whenever the courts of the [s]tate from which the judgments emerged

would do so.” Allen v. McCurry, 449 U.S. 90, 96 (1980). Because the New York

Supreme Court issued the relevant prior judgment at issue, we apply New York

law to determine the preclusive effect of that judgment in this action. Under New

York law, a prior court decision has claim-preclusive effect when there is: (1) “a

judgment on the merits . . . from a prior action”; (2) “between the same parties”;

and (3) “involving the same subject matter.” In re Hunter, 4 N.Y.3d 260, 269

(2005). This rule “applies not only to claims actually litigated but also to claims

that could have been raised in the prior litigation.” Id.

With respect to the first res judicata element, VDARE does not meaningfully

dispute that the state court’s order granting OAG’s petition to compel qualified as

10 a final judgment on the merits. See Bannon v. Bannon, 270 N.Y. 484, 489–90 (1936);

see also In re 381 Search Warrants Directed to Facebook, Inc., 29 N.Y.3d 231, 243 (2017)

(“[A]n order resolving a motion to quash . . . a subpoena is a final and appealable

order in a special proceeding.”). Nor is there any question that the second

element of the res judicata test is satisfied, since the parties to both the state- and

federal-court cases are identical. VDARE’s appeal, then, hinges on the third res

judicata element: whether the two suits involve the same subject matter.

New York courts apply “a transactional analysis approach” to determine

whether two suits raise the same claims. Simmons v. Trans Express Inc., 37 N.Y.3d

107, 111 (2021) (internal quotation marks omitted). Under this approach, “once a

claim is brought to a final conclusion, all other claims arising out of the same

transaction or series of transactions are barred, even if based upon different

theories or if seeking a different remedy.” Id. (emphasis omitted) (quoting

O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981)). To determine whether

“particular claims are part of the same transaction for res judicata purposes,” courts

have adopted a “pragmatic test” that examines “whether the facts are related in

time, space, origin, or motivation, whether they form a convenient trial unit, and

whether their treatment as a unit conforms to the parties’ expectations or business

11 understanding or usage.” Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100–01 (2005)

(internal quotation marks omitted).

Here, we conclude that an identity of claims exists between VDARE’s

federal action and the New York state subpoena enforcement proceeding. To

begin, the state and federal actions arise out of the same set of operative facts and

underlying dispute regarding the enforceability of the OAG’s subpoena to

VDARE. And although raised in distinct procedural forms, VDARE’s federal

complaint and its cross-motion to dismiss the state-court petition concern the same

relevant harms: the OAG’s alleged violations, through its issuance of the

subpoena, of VDARE’s rights under the First Amendment and New York State

Constitution. Similarly, the interests of the respective parties are essentially the

same across the two actions. The OAG brought the state proceeding to enforce

the subpoena, which VDARE opposed in that forum; VDARE brought the federal

action challenging and seeking to enjoin that same subpoena, which the OAG

opposed in that forum. Success for VDARE in either state or federal court would

have yielded the same result: the OAG would have been precluded from

enforcing its subpoena. Cf. O’Brien, 54 N.Y.2d at 357–58 (applying res judicata

“[w]hen alternative theories are available to recover what is essentially the same

12 relief for harm arising out of the same or related facts such as would constitute a

single factual grouping” (internal quotation marks omitted)).

Indeed, VDARE itself recognized the overlap between the two actions. In

its memorandum of law in support of its motion to dismiss or stay the state court

action, VDARE argued that its “[f]ederal [c]omplaint is based on the same

underlying issues raised by this special proceeding subsequently filed by the OAG.”

VDARE Mem. in Supp. of Mot. to Dismiss (“VDARE N.Y. Mem.”), Doc. No. 51 at

4, People v. VDARE Found., Inc., No. 453196/2022 (N.Y. Sup. Ct. Jan. 23, 2023)

(emphasis added); see App’x at 232 (similar). It further noted that the federal

action “duplicate[s] and overlap[s] with th[e] special proceeding” in that it alleges,

among other things, “the OAG[’s] unreasonabl[e] demands [for the] disclosure of

identities of contractors indispensable to VDARE's work without any apparent

legitimate investigatory purpose” in violation of “settled principles of

constitutional law.” VDARE N.Y. Mem. at 4; App’x at 232. VDARE went so far

as to acknowledge that “[i]ssues decided in [the] first-filed federal case may be

entitled to preclusive effect in this case.” VDARE N.Y. Mem. at 6.

In other words, this is not a case where VDARE simply could have argued

that the OAG’s subpoena would chill its own free-association rights and those of

13 its vendors and contractors and that the overall investigation was a pretext for

viewpoint-based retaliation. See, e.g., Matter of Grand Jury Subpoenas, 72 N.Y.2d

307, 312 (1988); Evergreen Ass’n v. Schneiderman, 54 N.Y.S.3d 135, 145–46 (2d Dep’t

2017) (narrowing subpoena after recipient argued subpoena interfered with First

Amendment right to associate freely and anonymously). VDARE in fact did make

those arguments before the New York Supreme Court and First Department – both

of which rejected them. 3 In doing so, VDARE demonstrated its understanding

that the recipient of a state petition to compel compliance with an OAG subpoena

could use the special proceeding to challenge the constitutionality of the subpoena.

VDARE nevertheless asserts that the res judicata test is not satisfied here

because it “did not receive a full and fair opportunity to litigate its First

Amendment claims in the state court,” VDARE Br. at 24, and “‘formal barriers’ to

asserting [its] claim[s] existed in th[is] first forum,” id. at 31 (quoting Davidson v.

Capuano, 792 F.2d 275, 278 (2d Cir. 1986)). VDARE points to the summary nature

of the state-court special proceeding, which does not allow for discovery without

3 Although the First Department’s affirmance was entered after the district court dismissed the federal suit, it is nonetheless relevant to our preclusion analysis. See 18A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4432 (3d. ed. updated Sep. 2025) (explaining that when “an appeal has been taken, the nature of the ultimate final judgment in a case ordinarily is controlled by the actual appellate disposition”).

14 leave of the court and, according to VDARE, “makes no provision for the bringing

of a counterclaim.” Id. We are not persuaded. 4

For starters, VDARE does not meaningfully explain why the state court “did

not have the power to award the full measure of relief sought” or how there were

any “formal barriers” to the assertion of its federal claims in the state-court

proceeding. Davidson, 792 F.2d at 278 (internal quotation marks omitted).

Contrary to VDARE’s suggestion, N.Y. C.P.L.R. § 402 does allow for respondents

to assert counterclaims in special proceedings, such that VDARE could have raised

its First Amendment arguments as a counterclaim rather than as a defense in its

cross-motion to dismiss. VDARE likewise does not explain why it could not have

obtained from the New York Supreme Court the injunctive and declaratory relief

that it sought in the federal action. Cf. Davidson, 792 F.2d at 278–79 (Article 78

proceeding did not bar subsequent section 1983 claims where state court could not

4 In arguing that it lacked the “full and fair opportunity to litigate” its constitutional claims in state court, VDARE invokes the applicable standards used for collateral estoppel, or issue preclusion, which “is related to, but distinct from, the doctrine of res judicata,” which the district court concluded barred VDARE’s claims in federal court. Simmons, 37 N.Y.3d at 112 (explaining that issue preclusion applies “where the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the party who is being estopped had a full and fair opportunity to litigate the issue in the earlier action” (internal quotation marks omitted). VDARE does not argue that the district court applied the wrong doctrine, nor does it meaningfully explain – besides simply repeating one of its elements – whether or why issue preclusion applies here.

15 award plaintiff damages); Burgos v. Hopkins, 14 F.3d 787, 791 (2d Cir. 1994) (similar,

with respect to state habeas corpus proceeding and subsequent section 1983 claims

for compensatory and punitive damages). 5 And as a practical matter, we discern

no consequential difference between a state-court determination that an OAG’s

subpoena is unenforceable, and a federal court’s grant of injunctive and

declaratory relief barring enforcement of the subpoena; the effective relief under

either scenario is the same.

Nor are we convinced that the more limited nature of the state proceeding

compromised VDARE’s ability to litigate its constitutional arguments. While

discovery may not have been available as of right, VDARE could have sought

leave to take discovery in the state proceeding and does not explain why it failed

to do so. N.Y. C.P.L.R. § 408; see, e.g., Matter of Evercare Choice, Inc. v. Zucker, 193

N.Y.S.3d 354, 361 (3d Dep’t 2023) (remitting special proceeding to trial court to

resolve fact questions at an evidentiary hearing). In any event, we have

previously rejected arguments that procedural differences like the ones VDARE

5 We focus on injunctive and declaratory relief because, as VDARE concedes, the Eleventh Amendment and sovereign immunity bar its claims for compensatory and punitive damages against the Attorney General (sued only in her official capacity) for violating its rights under the First Amendment and Article I, Section 8 of the New York State Constitution. Sp. App’x at 39 nn.3 & 4.

16 identifies here are relevant for res judicata purposes. See Bartel Dental Books Co. v.

Schultz, 786 F.2d 486, 489 & n.1 (2d Cir. 1986) (applying res judicata “without

regard” to whether state court held a “[full evidentiary] hearing” or plaintiff was

in a “defensive posture” in the prior proceeding); Exxon Mobil Corp. v. Healey, 28

F.4th 383, 401 (2d Cir. 2022) (analogizing Massachusetts law to New York law and

rejecting plaintiff’s argument that res judicata did not apply because the prior state

proceeding to set aside a civil investigative demand “was limited in nature”).

Similarly, VDARE suggests that res judicata does not apply here because the

applicable presumptions and burdens of proof in the state-court subpoena-

enforcement proceeding favored the OAG; for example, the state court evaluated

the subpoena in light of the “presum[ption] that the Attorney General acts in good

faith.” Reply Br. at 7 (internal quotation marks omitted). This may well be a

valid argument under the doctrine of issue preclusion, because a “[f]ailure of one

party to carry the burden of persuasion on an issue should not establish the issue

in favor of an adversary who otherwise would have the burden of persuasion on

that issue in later litigation.” Medtronic, Inc. v. Mirowski Fam. Ventures, LLC, 571

U.S. 191, 200 (2014) (internal quotation marks omitted). But claim preclusion – the

doctrine at issue here – “is not affected by shifts or changes in the burden of

17 persuasion so long as successive proceedings in fact involve the same claim.” 18

Charles Alan Wright, Arthur R. Miller, Federal Practice and Procedure § 4422 n.1

(3d ed. updated Sep. 2025); see O’Shea v. Amoco Oil Co., 886 F.2d 584, 594 (3d Cir.

1989) (“[A]pplying claim preclusion when there are varying burdens of proof does

not raise any problem analogous to the problem of applying issue preclusion.”).

As a result, VDARE’s argument is of no moment here.

More broadly, our precedents addressing the preclusive effect of state court

judgments involving motions to compel or quash subpoenas, as well as similar

cases from outside the circuit, support our conclusion here. See, e.g., Temple of Lost

Sheep Inc. v. Abrams, 930 F.2d 178, 180–84 (2d Cir. 1991) (issue preclusion barred

religious society’s federal claims related to attorney general’s subpoena in

charities-fraud investigation after state court denied plaintiff’s motion to quash

subpoena in prior suit); Exxon Mobil Corp., 28 F.4th at 398–402 (similar); Smith &

Wesson Brands, Inc. v. Att’y Gen. of New Jersey, 105 F.4th 67, 80–81 (3d Cir. 2024)

(similar).

* * *

18 In short, we conclude that all three elements of New York’s claim preclusion

test are satisfied and therefore agree with the district court that VDARE’s claims

brought in federal court are barred in light of the prior state-court judgment.

C. Other Considerations Do Not Preclude Application of Res Judicata

VDARE alternatively argues that, on the facts of this case, “[e]quity dictates

against” preclusion and the district court “failed to do equity.” VDARE Br. at 24,

29. To the extent that such arguments have not already been addressed above,

we reject them here.

“The doctrine of res judicata serves vital public interests beyond any

individual judge’s ad hoc determination of the equities in a particular case,” and

“[t]here is simply no principle of law or equity which sanctions the rejection by a

federal court of the salutary principle of res judicata.” Federated Dep't Stores, Inc.

v. Moitie, 452 U.S. 394, 401 (1981) (internal quotation marks omitted). For this

reason, VDARE is unable to point to any case where a New York court has

declined to give preclusive effect to a prior judgment based on generalized

principles of equity. 6

6 We also reject, at the motion-to-dismiss stage, VDARE’s invitation to engage in factfinding regarding what VDARE contends was bad-faith conduct by the OAG concerning the parties’ discussions between July and December 2022 and the OAG’s commencement of the state

19 VDARE also suggests at various points that res judicata should not apply

here because VDARE filed its claims in federal court first, before the

commencement of the state proceedings. But as the district court correctly noted,

“for purposes of res judicata[,] the effective date of a final judgment is the date of

its rendition, without regard to the date of commencement of the action in which

it is rendered or the action in which it is to be given effect.” Forte v. Kaneka Am.

Corp., 493 N.Y.S.2d 180, 183 (2d Dep’t 1985). And “when two actions are pending

which are based on the same claim, or which involve the same issue, it is the final

judgment first rendered in one of the actions which becomes conclusive in the

other action (assuming any further prerequisites are met), regardless of which

action was first brought.” Restatement (Second) of Judgments § 14, cmt. a (1982).

There can be no dispute that the state judgment was rendered ahead of the federal

one here. 7

VDARE contends that it chose to litigate its constitutional claims in a federal

proceeding.

7 VDARE’s general suggestion that it took the “initiative” in challenging the subpoena in federal court is likewise unpersuasive. VDARE Br. at 27. As the New York Court of Appeals has recognized, “the proper and exclusive vehicle to challenge the validity of a subpoena” is “[a] motion to quash or vacate.” Brunswick Hosp. Ctr., Inc. v. Hynes, 52 N.Y.2d 333, 339 (1981). “Such a motion must be made promptly, generally before the return date of the subpoena.” Id. VDARE took no such action here, and indeed, filed its federal suit challenging the subpoena months after the subpoena’s return date and after it had begun producing responsive documents.

20 forum and thus cannot “be compelled, without [its] consent . . . , to accept instead

a state court’s determination of those claims.” VDARE Br. at 27–28 (quoting

England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 415 (1964)). While this

argument is not well-developed in its brief, it appears that VDARE is attempting

to invoke the so-called England doctrine, which permits a “plaintiff [to] reserve his

right to return to federal court for the disposition of his federal claims” “when a

federal court abstains from deciding a federal constitutional issue to enable the

state courts to address an antecedent state-law issue.” San Remo Hotel, L.P. v. City

& County of San Francisco, 545 U.S. 323, 339 (2005) (citing England, 375 U.S. at 419).

But VDARE makes no effort to explain why England applies in this case, which

does not involve any “federal constitutional challenges to a state statute that can

be avoided if a state court construes the statute in a particular manner,” id., and

where VDARE took “action to broaden the scope of the state court’s review

beyond” the state law issue by raising its federal constitutional challenges in its

cross-motion, id. at 340; see Smith & Wesson Brands, 105 F.4th at 84 (rejecting England

reservation argument). As the Supreme Court has long recognized, state courts

“are equally capable of safeguarding federal constitutional rights,” Haw. Hous.

Auth. v. Midkiff, 463 U.S. 1323, 1325 (1983), and we see no reason to set aside the

21 district court’s res judicata ruling on this ground.

Finally, we briefly address why VDARE’s appeal of the district court’s

denial of VDARE’s motion for a preliminary injunction must be denied as moot.

As VDARE concedes, its motion for a preliminary injunction depended entirely on

whether the district court correctly applied the doctrine of res judicata in dismissing

its complaint. See Reply Br. at 8 (“The only reason the preliminary injunction was

denied was the application of res judicata. With that out of the way, there is no

reason the preliminary injunction should not be granted.”). Given that we have

concluded that the court below correctly determined that VDARE’s claims are

precluded by res judicata – which entails “dismiss[al of] the complaint in this case”

– VDARE’s appeal of the “denial of a preliminary injunction” “has become moot

and is, accordingly, dismissed.” Ruby v. Pan Am. World Airways, Inc., 360 F.2d

691, 691 (2d Cir. 1966).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court

and DISMISS AS MOOT the appeal of the district court’s order denying

VDARE’s motion for a preliminary injunction.